This
essay is presented in five sections beginning with a general
characterisation of the maqasid al-Shari’ah and its origins in the
Qur’an. The next section addresses the classification of the maqasid
and a certain order of priority that is integrated into the structure
of the maqâsid. Section three is devoted to historical developments and
the contributions of some of the leading ‘ulama’ especially that of Abu
Ishaq Ibrahim al-Shatibi, to the theory of the maqasid. Section four
looks into the differential approaches the ‘ulama’ have taken toward
the identification of the maqasid. The last section highlights the
relevance of the maqasid to ijtihad and the ways in which the maqâsid
can enhance the scope and calibre of ijtihad.

Textual Origins

Maqasid
al-Shari`ah, or the goals and objectives of Islamic law, is an
evidently important and yet somewhat neglected theme of the Shari’ah.
Generally the Shari`ah is predicated on the benefits of the individual
and that of the community, and its laws are designed so as to protect
these benefits and facilitate improvement and perfection of the
conditions of human life on earth. The Qur’an is expressive of this
when it singles out the most important purpose of the Prophethood of
Muhammad (peace be on him) in such terms as: "We have not sent you but
a mercy to the world" (21: 107). This can also be seen perhaps in the
Qur’an’s characterisation of itself in that it is "a healing to the
(spiritual) ailment of the hearts, guidance and mercy for the
believers" (and mankind) (10: 57).

The two uppermost objectives
of compassion (rahmah)and guidance (huda)in the foregoing verses are
then substantiated by other provisions, in the Qur’an and the Sunnah
that seek to establish justice, eliminate prejudice, and alleviate
hardship. The laws of the Qur’an and the Sunnah also seek to promote
cooperation and mutual support within the family and the society at
large. Justice itself is a manifestation of God’s mercy as well as an
objective of the Shari’ah in its own right. Compassion (rahmah) is
manifested in the realisation of benefit (maslahah)which the ‘Ulamâ’
have generally considered to be the all-pervasive value and objective
of the Sharî’ah and is to all intents and purposes synonymous with
rahmah.

Educating the individual (tahdhib al-fard) is another
important objective of the Shari’ah so much so that it comes, in order
of priority, even before justice and maslahah. For these are both
socially-oriented values which acquire much of their meaning in the
context of social relations, whereas tahdhib al-fard seeks to make
every individual a trustworthy agent and carrier of the values of the
Sharî’ah, and it is through educating the individual that the Shari’ah
seeks to realise most of its social objectives. The overall purpose of
a great deal of the laws and values of the Shari’ah, especially in the
spheres of ‘ibadat and moral teaching, is to train an individual who is
mindful of the virtues of taqwa and becomes an agent of benefit to
others.

The Qur’an is expressive, in numerous places and a
variety of contexts, of the rationale, purpose and benefit of its laws
so much so that its text becomes characteristically goal-oriented. This
feature of the Qur’ânic language is common to its laws on civil
transactions (mu’amalat)as well as devotional matters (‘ibadat). Thus
when the text expounds the rituals of wudû (ablution for prayer) it
follows on to declare that "God does not intend to inflict hardship on
you. He intends cleanliness for you and to accomplish his favour upon
you" (5: 6). Then with regard to the prayer itself, it is declared that
"truly salâh obstructs promiscuity and evil" (29: 45). With reference
to jihâd the Qur’an similarly proclaims its purpose in such term that
"permission is granted to those who fight because they have been
wronged" (22: 39). The purpose, in other words, of legalising jihâd is
to fight injustice (zulm) and the purpose of salah is to attain
spiritual purity and excellence that is accomplished together with
physical cleanliness through ablution before prayer. With reference to
the law of just retaliation (qisas), the text similarly declares that
"in qisas there is life for you, o people of understanding" (2: 179);
and with regard to poor-due (zakah), the Qur’an validates it "so that
wealth does not circulate only among the wealthy" (57:7). According to
another text, the believers are under duty to lower their gaze in their
encounter with members of the opposite sex, "for this will help you to
attain greater purity" (24: 30).

One can add many more examples
of the law which show how the Qur’an and the Sunnah are expressive of
their goal justification, cause and benefit in the affirmative sense,
just as one finds numerous references to evil conduct and crime which
is reprimanded and made punishable, in the negative sense, in order to
prevent injustice, corruption and prejudice. In the area of commerce
and mu’amalât, the Qur’an forbids exploitation, usury, boarding and
gambling which are harmful and jeopardise the objective of fair dealing
in the market-place. The underlying theme in virtually all of the broad
spectrum of the ahkam is realisation of benefit (maslahah)which is
regarded as the summa of the maqasid. For justice is also a maslahah
and so is tahdhib al-fard. The masalih (pl. of maslahah), thus become
another name for the maqasid and the ‘ulama’ have used the two terms
almost interchangeably.

Classification Of Benefits

The
‘ulama’ have classified the entire range of masalih-cum-maqasid into
three categories in a descending order of importance, beginning with
the essential masâlih, or daruriyyat, followed by the complementary
benefits, or hajiyyat, and then the embellishment tahsiniyyat. The
essential interests are enumerated at five, namely faith, life,
lineage, intellect and property. These are, by definition, essential to
normal order in society as well as to the survival and spiritual well
being of individuals, so much so that their destruction and collapse
will precipitate chaos and collapse of normal order in society. The
Shari’ah seeks to protect and promote these values and validates
measures for their preservation and advancement. Jihad has thus been
validated in order to protect religion, and so is just retaliation
(qisas) which is designed to protect life. The Shari’ah takes
affirmative and also punitive measures to protect and promote these
values. Theft, adultery and wine-drinking are punishable offences as
they pose a threat to the protection of private property, the
well-being of the family, and the integrity of human intellect
respectively. In an affirmative sense again, but at a different level,
the Shari’ah encourages work and trading activity in order to enable
the individual to earn a living, and it takes elaborate measures to
ensure the smooth flow of commercial transactions in the market-place.
The family laws of the Shari’ah are likewise an embodiment largely of
guidelines and measures that seek to make the family a safe refuge for
all of its members. The Shari’ah also encourages pursuit of knowledge
and education to ensure the intellectual well-being of the people and
the advancement of arts and civilisation. The essential masalih, in
other words, constitute an all-encompassing theme of the Shari’ah as
all of its laws are in one way or another related to the protection of
these benefits. These benefits are an embodiment, in the meantime, of
the primary and overriding objectives of the Shari’ah.

The
second class of the interests, known as hajiyyat, or complementary
interests, are not an independent category as they also seek to protect
and promote the essential interests, albeit in a secondary capacity.
These are defined as benefits, which seek to remove severity and
hardship that do not pose a threat to the very survival of normal
order. A great deal of the concessions (rukhas)such as the shortening
of salah, and opening of the fast for the sick and the traveller, which
the Shari’ah has granted, are aimed at preventing hardship, but they
are not essential since people can live without them if they had to. In
almost all areas of obligatory ‘ibadat the Shari’ah has granted such
concessions. Similarly, in the area of criminal law, the hadith which
proclaims that "prescribed penalties are suspended in all cases of
doubt" protects a secondary interest in that it regulates the manner in
which punishments are enforced. These punishments are in turn designed
to protect the essential interests through judicial action. In the
sphere of mu’amalat, the Shari’ah validated certain contracts, such as
the sale of salam, and also that of lease and hire (ijarah)because of
the people’s need for them notwithstanding a certain anomaly that is
attendant in both. In the sphere of family law, once again the Sharî’ah
permits divorce in situations of necessity by way, that is, of a
concession, which is aimed, in the final analysis, at ensuring the
well-being of the family and defending it against intolerable conflict.

A
maslahah of the second class is elevated to the rank of the essential
maslahah when it concerns the public at large. To illustrate this, the
validity of ijarah may be of secondary importance to an individual but
it is an essential interest for the society at large. Similarly,
certain concessions that are granted in the sphere of ‘ibadat may be
secondary to the survival of an individual but it becomes, a matter of
primary interest for the community as a whole. In the event of a
conflict arising between the various classes of interest, the lesser of
these may be sacrificed in order to protect a higher interest. When
there is a plurality of conflicting interests and none appears to be
clearly preferable, then prevention of evil takes priority over the
realisation of benefit. This is because the Shari’ah is more emphatic
on the prevention of evil, as can be seen in the hadith where the
Prophet (peace be on him) has reportedly said: "When I order you to do
something, do it to the extent of your ability, but when I forbid you
from something, then avoid it (altogether)".

The third class of
masâlih, known as tahsîniyyât, are in the nature of desirabilities as
they seek to attain refinement and perfection in the customs and
conduct of people at all levels of achievement. The Sharî’ah thus
encourages cleanliness of body and attire for purposes of prayer and
recommends, for instance, the wearing of perfume when attending the
congregational Friday prayer; contrariwise, it discourages the
consumption of raw garlic on that occasion. The Shari’ah also
encourages charity to those in need beyond the level of obligatory
taxes, and in ‘ibadat, it recommends supererogatory prayers, and so
forth. In customary matters and relations among people, the Shari’ah
encourages gentleness (rifq), pleasant speech and manner (husn
al-khulq)and fair dealing (ihsan). The judge and the head of state are
similarly counselled not to be too eager in the enforcement of
penalties, such a course being considered a desirable one to take. The
purpose of all this is the attainment of beauty and perfection in all
areas of human conduct.

This last category of interests is
perhaps of special importance as it is pervasive and relates to all
other masalih. One can perform the obligatory salah, for example, in
different ways, with or without proper concentration and giving each of
its parts their due attention, or perform it in a hasty and thoughtless
manner, and the difference between them is that the first is espoused
with the attainment of both the essential and the desirable, and the
second ‘can at best be discharged as a duty. One can extend this
analysis to almost every area of human conduct and the implementation
of almost all of the ahkam of the Shari’ah. It should be obvious, then,
that the classification of masalih need not be confined to the ahkam of
the Shari’ah or to religious matters alone as it is basically a
rational construct that applies to customary, social, political,
economic and cultural affairs and so forth. To build the first hospital
in a town is likely to be necessary and essential, but to build a
second and third may be only complementary and desirable. And then to
equip each one with the latest and most efficient health care
facilities may fall under the category either of the second or the
third classes of interests, depending, of course, on the general
conditions of each locality. From this analysis, it also appears that
classifying a certain interest and maslahah under one or the other of
these categories is likely to be relative and involve value judgement
that contemplate the attendant circumstances of each case.

History In Brief

As
a theme of the Sharî’ah in its own right, the maqasid did not receive
much attention in the early stages of the development of Islamic legal
thought and, as such, they represent rather a later addition to the
juristic legacy of the madhâhib. Even to this day many a reputable
textbook on Usûl al-Fiqh does not mention maqâsid al-Sharî’ah in their
usual coverage of familiar topics. This is partly due perhaps to the
nature of the subject, which is largely concerned with the philosophy
of the law, its outlook and objective, rather than the specific
formulations of its text. Although the maqâsid as a distinctive theme
of the Sharî’ah are obviously relevant to ijtihâd, they have not been
treated as such in the conventional expositions of the theory of
ijtihâd.

Islamic legal thought is, broadly speaking, preoccupied
with concerns over conformity to the letter of the divine text, and the
legal theory of Usûl al-Fiqh has advanced that purpose to a large
extent. This literalist orientation of the juristic thought was
generally more pronounced in the approach of the tendency - the
traditionist - the Ahl al-Hadîth - than that of the Rationalists - the
Ahl al-Ray. The literalists thus tended to view the Sharî’ah as a set
of rules, commands and prohibitions that were addressed to the
competent individual mukallaf and all that the latter was expected to
conform to its directives. The precedent of the leading Companions
indicated, on the other hand, that they saw the Sharî’ah both as a set
of rules and a value system in which the specific rules were seen as
tangible manifestations of the overriding values. The textualist
tradition of the first three centuries did not take much interest in
maqâsid al-Sharî’ah and it was not until the time of al-Ghazâlî (d.
505/1111) and then al-Shâtibi (d. 790/1388) that significant
developments were made in the formulation of the theory of maqâsid.

The
basic outlook that was advocated by the theory of the maqâsid was not
denied by the leading schools, yet the maqâsid remained on the fringes
of the mainstream juristic thought that was manifested in the various
themes and doctrines of Usûl al-Fiqh. Except for the Zâhirîs who
maintained that the maqâsid are only known when they are identified and
declared by the clear text, the majority of ‘ulamâ’ did not confine the
maqâsid to the clear text alone. For they perceived and understood the
Sharî’ah to be rational, goal-oriented and its rules generally founded
on identifiable causes. A mere conformity to rules that went against
the purpose and outlook of the Sharî’ah was., therefore, generally
considered unacceptable. A totally different approach to the maqâsid
was taken by the Bâtiniyyah who held, contrary to the Zâhirîs, that the
essence and objective of the nusûs were always to be found, not in the
explicit words of the text, but in its hidden meaning (i.e. bâtin),
hence their name, the Bâtiniyyah. There were also differences of
orientation among the leading madhâhib toward the maqâsid: some were
more open to it than others, but elaboration into the goals and
objectives of the Sharî’ah was generally not encouraged. This rather
unspoken attitude contrasted with the fact that the Qur’ân itself
exhibits considerable awareness of the underlying purposes and
objectives of its laws and often expounds the causes and rationale on
which they are founded. The general reticence of the ‘ulamâ’ in respect
of the identification of the maqâsid might have partly been due to the
elements of projection and prognostication that such an exercise was
likely to involve. Who can tell, for sure, for example, that this or
that is the purpose and overriding objective of the Lawgiver, without
engaging in a degree of speculation, unless of course, the text itself
declared it so. But then to confine the scope of the maqâsid only to
the clear declaration of the texts was also not enough, as I shall
presently elaborate.

It was not until the early fourth century
that the term ‘maqâsid’ was used in. the juristic writings of Abû ‘Abd
Allâh al-Tirmidhî al-Hakîm (d. 320/932) and recurrent references to it
appeared in the works of lmâm al-Haramayn al-Juwaynî (d. 478/1085) who
was probably the first to classify the maqâsid al-Sharî’ah into the
three categories of essential, complementary and desirable (darûriyyât,
hâjiyyât, tahsîniyyât)which has gained general acceptance ever since.
Juwaynî’s ideas were then developed further by his pupil, Abû Hamîd
al-Ghazâlî who wrote at length on public interest (maslahah)and
ratiocination (ta’lîl)in his works, Shifâ’ al-Ghalîl and al-Mustasfâ.
Ghazâlî was generally critical of maslahah as a proof but validated it
if it promoted the maqâsid of the Sharî’ah. As for the maqâsid
themselves, Ghazâlî wrote categorically that the Sharî’ah pursued five
objectives, namely those of faith, life, intellect, lineage and
property which were to be protected as a matter of absolute priority.

A
number of prominent writers continued to contribute to the maqâsid, not
all of them consistently perhaps, yet important to the development of
ideas. Sayf al-Dîn al-Âmidî (d. 631/1233) identified the maqâsid as
criteria of preference al-tarjîh among conflicting analogies and
elaborated on an internal order of priorities among the various classes
of maqâsid. Âmidî also confined the essential maqâsid to only five. The
Mâlikî jurist, Shihab al-Din al-Qarâfî (d. 684/1285) added a sixth to
the existing list, namely the protection of honour (al-‘ird)and this
was endorsed by Taj al-Din ‘Abd al-Wahhab ibn al-Subki (d. 771/1370)
and later by Muhammad ibn ‘Ali al-Shawkânî (d. 1250/1834). The list of
five essential values was evidently based on a reading of the relevant
parts of the Qur’ân and the Sunnah on the prescribed penalties (hudud).
The value that each of these penalties sought to vindicate and defend
was consequently identified as an essential value. The latest addition
(i.e. al-‘ird)was initially thought to have been covered under lineage
(al-nasl, also al-nasab), but the proponents of this addition relied on
the fact that the Shari’ah had enacted a separate hadd punishment for
slanderous accusation (al-qadhf), which justified the addition. ‘Izz
al-Dîn ‘Abd al-Salâm al-Sulami’s (d. 660/1262) renowned work, Qawa’id
al-Ahkam, was in his own characterisation a work on ‘maqasid al-ahkam’
and addressed the various aspects of the maqasid especially in
relationship to ‘illah (effective cause) and maslahah (public interest)
in greater detail. Thus he wrote at the outset of his work that "the
greatest of all the objectives of the Qur’ân is to facilitate benefits
(masâlih)and the means that secure them and that the realisation of
benefit also included the prevention of evil." Sulamî added that all
the obligations of the Shari’ah (al-takalif)were predicated on securing
benefits for the people in this world and the next. For God Most High
is Himself in no need of benefit nor is He in need of the obedience of
His servants. He is above all this and cannot be harmed by the
disobedience of transgressors, nor benefit from the obedience of the
righteous. The Sharî’ah is, in other words, concerned, from the
beginning to the end, with the benefits of God’s creatures.

Taqi
al-Din ibn Taymiyyah (d. 728/1328) was probably the first scholar to
depart from the notion of confining the maqasid to a specific number
and added, to the existing list of the maqasid, such things as
fulfilment of contracts, preservation of the ties of kinship, honouring
the rights of one’s neighbour, in so far as the affairs of this world
are concerned, and the love of God, sincerity, trustworthiness, and
moral purity, in relationship to the hereafter. Ibn Taymiyyah thus
revised the scope of the maqasid from a designated and specified list
into an open-ended list of values, and his approach is now generally
accepted by contemporary commentators, including Ahmad al-Raysuni,
Yusuf al-Qaradawi and others. Qaradawi has further extended the list of
the maqasid to include social welfare and support (al-takaful),
freedom, human dignity and human fraternity, among the higher
objectives and maqasid of the Shari’ah. These are undoubtedly upheld by
both the detailed and the general weight of evidence in the Qur’an and
the Sunnah.

I propose to add economic development and
strengthening of R & D in technology and science to the structure
of maqasid as they are crucially important in determining the standing
of the ummah in the world community. It would appear from this analysis
that the maqâsid al-Shari’ah remain open to further enhancement which
will depend, to some extent, on the priorities of every age.

Identification Of Maqasid

As
already indicated the ‘ulama’ have differed in their approach to the
identification of the maqâsid. The first approach to be noted is the
textualist approach, which confines the identification of the maqasid
to the clear text, commands and prohibitions, which are the carriers of
the maqasid. The maqâsid, according to this view, have no separate
existence outside this framework. Provided that a command is explicit
and normative it conveys the objective maqsud of the Lawgiver in the
affirmative sense. Prohibitions are indicative of the maqâsid in the
negative sense in that the purpose of a prohibitive injunction is to
suppress and avert the evil that the text in question has contemplated.
This is generally accepted, but there are certain tendencies within
this general framework. While the Zahiris tend to confine the maqasid
to the obvious text, the majority of jurists takes into consideration
both the text and the underlying ‘illah and rationale of the text. The
chief exponent of the maqasid, Shatibi, has spoken affirmatively of the
need to observe and respect the explicit injunctions, but then he added
that adherence to the obvious text should not be so rigid as to
alienate the rationale and purpose of the text from its words and
sentences. Rigidity of this kind, Shatibi added, was itself contrary to
the objective (maqsud)of the Lawgiver, just as would be the case with
regard to neglecting the clear tent itself. When the text, whether a
command or a prohibition, is read in conjunction with its objective and
rationale, this is a firm approach, one which bears greater harmony
with the intention of the Lawgiver. Shatibi elaborated that the maqasid
that are known from a comprehensive reading of the text are of two
types, primary (asliyyah)and secondary (tab’iyyah). The former are the
essential maqâsid or darûriyyât which the mukallaf must observe and
protect regardless of personal predilections, whereas the supplementary
maqâsid -hajiyyat- are those which leave the mukallaf with some
flexibility and choice.

A comprehensive reading of the textual
injunctions of the Shari’ah has given rise to such questions as to
whether the means to a wâjib or harâm should also be seen as a part of
the objective that is pursued by that injunction; whether the means to
a command, in other words, is also an integral part of that command.
Another question raised is whether avoiding the opposite of a command
is integral to the goal and objective that is sought by that command.
The general response given to these questions is that the supplementary
aspects of commands and prohibitions are an integral part of their
objectives, although disagreements have emerged over details. There is
a general agreement that the opposite of a command amounts to a
prohibition in the event where that opposite can be clearly identified.
Most of the injunctions of the Sharî’ah are easily understood, and
their objectives as well as their opposites can be known and
ascertained from the reading of the clear text. It is thus noted that
whatever might be necessary for the carrying out of a command or a
wâjib is also a part of that wâjib. Shâtibî has similarly concluded
that whatever is complementary to the maqâsid and in the service
thereof is also a part of the maqâsid. The question then arises
regarding the silence of the Lawgiver in respect of a certain conduct
in situations especially where a general reading of the relevant
evidence sheds light on the value of that conduct. The question may be
put as follows: We know that the maqâsid are known from clear
injunctions, but can they also be known from a general reading of the
nusûs by way of induction? This is where Shatibi has given an original
response, and this is what we take up next.

Induction (istiqra’)
to Shatibi is one of the most important methods of identifying the
maqâsid of the Sharî’ah. There may be various textual references to a
subject, none of which may be in the nature of a decisive injunction.
Yet their collective weight is such that it leaves little doubt as to
the meaning that is obtained from them. A decisive conclusion may, in
other words, be arrived at from a plurality of speculative expressions.
Shâtibî illustrates this by saying that nowhere in the Qur’ân is there
a specific declaration to the effect that the Sharî’ah has been enacted
for the benefit of the people. Yet this is a definitive conclusion
which is drawn from the collective reading of a variety of textual
proclamations. Shâtibî then adds that the benefits (masâlih)are to be
understood in their broadest sense which is inclusive of ail benefits
pertaining to this world and the hereafter, those of the individual and
the community, material, moral and spiritual, and those which pertain
to the present as well as the interests of the future generations. This
broad meaning of benefits also includes prevention and elimination of
harm. These benefits cannot always be verified and ascertained by human
reason alone without the aid and guidance of divine revelation.

The
typical classification of the maqâsid into the three categories of
essential,-complementary and desirable, and the conclusion that the
Lawgiver has intended to protect these are based, once again, on
induction-as there is no specific declaration on them in the textual
sources. On a similar note, the ruling of the Shari’ah that the
validity of an act of devotion (‘ibadah)cannot be established by means
of ijtihâd is an inductive conclusion which is drawn from the detailed
evidence on the subject, as there is no specific injunction in the
sources to that effect. These conclusions are, in the meantime, of
great overall importance; they are not open to doubt, nor is their
credibility a matter of speculative reasoning. It is also the same
inductive method which has led the ‘ulama’ to the conclusion that the
protection of the five values of faith, life, intellect, property and
lineage is of primary importance to the Shari’ah - there being no
textual ruling to specify any category or number of values in that
order.

Shatibi’s inductive method is not confined to the
identification of objectives and values but also extends to commands
and prohibitions, which may either be obtained from the clear text, or
from a collective reading of a number of textual proclamations that may
occur in a variety of contexts. Shatibi then goes a step further to say
that the inductive conclusions and positions that are so established
are the general premises and overriding objectives of the Shari’ah and
thus have a higher order of importance than specific rules. It thus
becomes evident that induction is the principal method of reasoning and
proof to which Shatibi resorted in his theory of the maqasid and it is
also in this regard that he has made an original contribution to this
theme.

Shatibi’s approach to induction is reminiscent of the
knowledge that is acquired of the personality and character of an
individual that is based on sustained association with that individual
and observation of his conduct over a period of time. This kind of
knowledge is broad and holistic, as it is enriched with insight, and
likely to be more reliable when compared to the knowledge that might be
based only on the observation of specific, isolated incidents in the
daily activities of the individual concerned.

Maqasid And Ijtihad

Having
expounded his theory of the maqâsid, Shatibi accentuated the knowledge
of the maqâsid as a prerequisite of attainment to the rank of a
mujtahîd. Those who neglect acquiring mastery of the maqâsid do so to
their own peril as it would make them liable to error in ijtihâd.
Included among these were the proponents of pernicious innovation (ahl
al-bid’ah)who only looked at the apparent text of the Qur’an without
pondering over its objective and meaning. These innovators (an allusion
to the Khârijites) held on to the intricate segments of the Qur’an
(almutashabihat)and premised their conclusions on them. They took a
fragmented and atomistic approach to the reading of the Qur’an which
failed to tie up the relevant parts of the texts together. The leading
‘ulama’ have, on the other hand, viewed the Shari’ah as a unity in
which the detailed rules should be read in the light of their broader
premises and objectives. Tahir ibn ‘Ashur, the author of another
landmark work on the maqasid, Maqasid al-Shari’ah al-Islamiyyah, has
also confirmed that knowledge of the maqasid is indispensable to
ijtihad in all of its manifestations. Some ‘ulama’ who confined the
scope of their ijtihad only to literal interpretations have found it
possible, Ibn ‘Ashur added, to project a personal opinion into the
words of the text and fell into error as they were out of line with the
general spirit and purpose of the surrounding evidence. This may be
illustrated by reference to the different views of the ‘ulama’ on
whether the zakah on commodities such as wheat and dates must be given
in kind or could it also be given in their monetary equivalent. The
Hanafis have validated giving of zakah in monetary equivalent but
al-Shafi’i (d. 204/820) has held otherwise. The Hanafî view is founded
on the analysis that the purpose of zakah is to satisfy the need of the
poor and this can also be achieved by paying the monetary equivalent of
a commodity. Ibn Qayyim al-Jawziyyah has likewise observed regarding
(sadaqat al-fitr)that there are ahâdith on the subject which refer
sometimes to dates and at other times to raisins or foodgrains as these
were the staple food of Madînah and its environs at the time. The
common purpose in all of these was to satisfy the need of the poor
rather than to confine its payment in a particular commodity. To give
another example, Mâlik (d. 179/795) was asked about a person who paid
his zakah ahead of time, that is, prior to the expiry of one year,
whether he was liable to pay it again at the end of the year. Mâlik
replied that he was and drew an analogy with the ritual prayer (salah).
If someone performs his prayer before its due time, he must perform it
again its proper time. Subsequent Maliki jurists, including Ibn
al-Arabi’ (d. 543/1148) and Ibn Rushd (d. 520/1126), have reversed this
position and stated that early payment of zakah was -permissible. There
was, they added, a difference between salâh and zakah in that the
former was time-bound to specific times, but no such time had been
stipulated for the payment of zakah. Hence zakah may be paid earlier
especially if it is prepaid by only a few weeks or even longer. Abu
Hanifah (d. 150/767) has often been criticised by the Ahl al-Hadith
for-having departed on occasions from the wording of ahadith to an
alternative ruling. But on closer examination it becomes clear that Abu
Hanifah has done so only when he reached a different conclusion by
reading a particular hadith in conjunction with other relevant evidence
in the Qur’an and the Sunnah.

It will also be noted that on
occasions mujtahidsand judges have issued decisions in disputed
matters, which were found upon further scrutiny to be in disharmony
with the goals and objectives of the Sharî’ah. Instances of this nature
are also encountered with reference to contracts since a contract may
duly have been signed and made binding on the parties and only then it
was found to be unfair to one of the parties due to some unexpected
change of circumstance. In that eventuality the judge and mujtahid can
hardly ignore the subsequent changes and insist on the obligatoriness
of the said contract on purely formal grounds. For a contract is no
longer the governing law of contracting parties (shari’at
al-‘aqidayn)if it proves to be an instrument of injustice. Such a
contract must be set aside and justice, which is the goal and maqsûd of
the Lawgiver, must be given priority over considerations of conformity
to an untenable contract. Without going into details, instances of
conflict between the overriding objectives of the Sharî’ah and a
particular ruling thereof can also arise with reference to the rulings
of analogy (qiyas). A rigid adherence to qiyas in certain cases may
lead to unsatisfactory results, hence a recourse may be had to istihsan
in order to obtain an alternative ruling that is in harmony with the
objectives of the Shari’ah.

Another feature of the maqâsid which
is important to ijtihâd is the attention a mujtahid must pay to the end
result and consequence of his ruling. For a fatwa or ijtihad would be
deficient if it fails to contemplate its own consequences (ma’alat). We
note in the Sunnah of the Prophet (peace be on him) instances where the
Prophet paid attention to the consequence of his ruling often in
preference to other considerations. There were cases, for instance,
where the Prophet (peace be on him) knew about the subversive
activities of the hypocrites but he did not pursue them for reasons, as
he stated himself, that I fear people might say that Muhammad kills his
own Companions". The Prophet (peace be on him) also avoided to change
the location of the Ka’bah to its original foundations where the
patriarch Prophet, Ibrahim, had laid them. The pre-Islamic Arabs of
Makkah had evidently changed that location, and when ‘A’ishah suggested
to the Prophet (peace be on him) that he could perhaps restore the
Ka’bah to its original position, he responded: "I would have done so if
I didn’t fear that this may induce our people into disbelief." In-both
of these cases, the Prophet (peace be on him) did not take what would
be thought to be the normal course, that is, to kill the hypocrites,
and-to restore the Ka’bah to its original foundations because of the
adverse consequences that were feared as a result of so doing.

The
normal course in the context of crimes and penalties is, of course, to
apply the punishment whenever the cause and occasion for it is present.
There may be cases, however, where pardoning the offender appears a
preferable course to take, and it is for the judge and mujtahid to pay
attention to them, and then reflect them in his judgement. Shatibi has
in this connection drawn a subtle distinction between the normal ‘illah
that invokes a particular ruling in a given case and what he terms as
verification of the particular ‘illah (tahqiq al-manat al-khass)in the
issuance of judgement and ijtihâd. The scholar (mujtahid)may be
investigating the normal ‘illah and identify it in the case, for
example, of a poor person who qualifies to be a recipient of zakah, and
also with references to the uprightness of a witness, but such an
enquiry may take a different course when it is related to a particular
individual as to what might seem appropriate or inappropriate to be
applied in that particular case. The mujtahid needs, therefore, to be
learned not only of the law and specific evidence but must also have
acumen and insight to render judgement that is enlightened by both the
overall consequences and special circumstances of each case.

Conclusion

The
Maqasid are undoubtedly rooted in the textual injunctions of the Qur’an
and the Sunnah, but they look mainly at the general philosophy and
objectives of these injunctions often beyond the specialities of the
text. The focus is not so much on the words and sentences of the text
as on the goal and purpose that is advocated and upheld. By comparison
to the legal theory of the sources, the Usul al-Fiqh, the maqasid
al-Shari’ah are not burdened with methodological technicality and
literalist reading of the text. As such the maqasid integrates a degree
of versatility and comprehension into the reading of the Shari’ah that
is, in many ways, unique and rises above the vicissitudes of time and
circumstance. At a time when some of the important doctrines of Usul
al-Fiqh such as general consensus (ijma’), analogical reasoning
(qiyas)and even ijtihâd seem to be burdened with difficult conditions,
conditions that might stand in a measure of disharmony with the
prevailing socio-political climate of the present-day Muslim countries,
the maqasid have become the focus of attention as it tends to provide a
ready and convenient access to the Shari’ah. It is naturally meaningful
to understand the broad outlines of the objectives of the Shari’ah in
the first place before one tries to move on to the specifics. An
adequate knowledge of the maqasid thus equips the student of the
Shari’ah with insight and provides him with a theoretical framework in
which the attempt to acquire detailed knowledge of its various
doctrines can become more interesting and meaningful.

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